Wolper v. LaGuardia Medical Group

143 A.D.2d 830, 533 N.Y.S.2d 383, 1988 N.Y. App. Div. LEXIS 10165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1988
• Status: Published

Opinion

In a medical malpractice action to recover damages for wrongful death, etc., the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Santucci, J.), dated July 17, 1987, as denied that branch of her motion which was to strike the answer of the defendant S. Berg on the condition that he undergo an examination before trial within 30 days of service upon him of a copy of the order with notice of entry.

Ordered that the order is affirmed insofar as appealed from, with costs.

On the record before us, it cannot be said that the order of the Supreme Court giving the respondent one last opportunity to appear for an examination before trial constitutes an abuse of discretion (see, CPLR 3126; De Joy v L & T Tavern Corp., 89 AD2d 613). Thompson, J. P., Brown, Rubin and Eiber, JJ., concur.